In the ARBITRATION between:
NAPTOSA obo Ronald Hillier
(Union / Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Adv. G Saaymen
Applicant’s address:
Telephone:
Telefax:
Email saaymangavin@gmail.com
Respondent’s representative: Ms B Mpange-Nchukana
Respondent’s address:
Telephone:
Telefax:
Email Asanda.Tsani@ecdoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 33A(4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 69 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held at the Respondent’s offices in Makhanda, on 6 September 2024. The Applicant, Mr Ronald Hillier, through his Union NAPTOSA, referred an enforcement dispute to the ELRC.
2. The Applicant was represented by Advocate G Saayman, an official from NAPTOSA. The Respondent, Department of Education – Eastern Cape was represented by Ms B Mpange-Nchukana, a Labour Relations Officer of the Respondent. Ms A Tsani, also a Labour Relations Officer as well as Ms Y Keyster from Human Resources were also present.
ISSUE TO BE DECIDED
3. A dispute concerns the alleged refusal and or failure of the Respondent to recognize the Applicant’s actual teaching experience, for the period of 1 April 2003 until 31 March 2006, and accordingly place him on the correct notch.
4. I am required to determine if the Respondent is in breach of the Collective Agreement and if so, determine the appropriate relief.
BACKGROUND TO THE ISSUES
5. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.
5.1 The Applicant is employed, by the Respondent, as a PL 2 educator at Alexandria High School.
5.2 His current notch is R434 721 per annum.
5.3 He should currently be on notch R455 943 per annum.
5.4 He is entitled to R69 861 in back pay due to him being on the incorrect notch.
5.5 The back pay is calculated from 1 April 2016 until 1 April 2024.
5.6 The applicable Collective Agreement relied upon is Collective Agreement 4 of 2003 read with PAM (Government Gazette 46879 of 2022 – See annexure A, B.8.4.3.1 thereof.)
5.7 The Applicant is entitled to be placed on notch R455 943 per annum.
6. The Applicant handed in bundle of documents, which was marked “A”. The parties agreed that the documents were what they purported to be.
7. The matter was digitally recorded.
SURVEY OF EVIDENCE AND ARGUMENT
8. The parties confirmed that all facts were common cause, as captured above. Despite being given an opportunity to do so, both parties indicated that they had no further evidence or arguments to add and there was also nothing they wished to dispute.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. It is common cause that the Applicant is on the incorrect notch and that as such the period which he claims, being 1 April 2003 until 31 March 2006 qualifies to be recognised.
10. It is further common cause that he is on notch R434 721, but he should be on notch R455 943.
11. It is also common cause that, as a result of the above, he is entitled to back pay in the amount of R69 861 for the period of 1 April 2016 until 1 April 2024. This amount was checked and confirmed by Ms Keyster from HR.
12. Clause 69.1, of Annexure “C” (Dispute Resolution Procedures) of ELRC Resolution 6 of 2016, provides that the General Secretary may promote, monitor and enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of this section 33 and section 33A of the Act.
13. Clause 69.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.
14. Clause 69.6 provides that despite clause 69.5, an educator may refer a dispute to the ELRC concerning the failure to pay an amount owing to that employee in terms of the Basic Conditions of Employment Act, the Employment of Educators Act, the Personal Administrative Measures (PAM), or any other regulations or subordinate legislation promulgated by the Minister of basic Education or MEC for Education in the respective Province where an educator is employed as it relates to conditions of service, a collective agreement and a contract of employment.
15. Clause 69.8 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33A of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
16. Clause 69.9 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.
17. The Applicant’s claim for the recognition of his actual teaching experience, specifically for the period claimed (1 April 2003 to 31 March 2006) is not disputed. The rectified notch, as a result of the aforementioned period not having been recognised previously, as well as the amount of back pay is agreed.
18. Neither party had anything they wished to place in dispute, despite being afforded an opportunity to do so.
19. The Applicant has requested to be placed on the correct notch and to receive the relevant back pay as a result of having been on the incorrect notch.
20. In terms of section 138(9) of the LRA “[a] commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award-
(a) that gives effect to any collective agreement,
(b) that gives effect to the provisions and primary objects of this Act,
(c) that includes, or is in the form of a declaratory order.”
AWARD
21. The Respondent, the Department of Education: Eastern Cape, is in breach of the terms of PAM B.8.4.3.1 (page 5 of “A”) read with ELRC Collective Agreement 4 of 2003, by failing to recognise the Applicant, Mr Ronald Hillier’s, actual teaching experience for the period of 1 April 2003 until 31 March 2006.
22. The Respondent is ordered to recognise the Applicant’s actual teaching experience for the period of 1 April 2003 until 31 March 2006.
23. As a result of the abovementioned recognition, the Respondent is ordered to place the Applicant on notch R455 963 per annum, with immediate effect.
24. As a further result of the recognition, per paragraph 22 above, the Respondent must pay the Applicant the amount of R69 861 in back pay for the period of 1 April 2016 until 1 April 2024.
25. The amount in paragraph 24, being R69 861, must be paid to the Applicant by no later than 31 October 2024.
Clint Enslin
(ELRC) Arbitrator